UDAY PRATAP THAKUR AND ANR.versusTHE STATE OF BIHAR AND ORS.

530                      [2023]REPORTS
               SUPREME COURT    4 S.C.R. 530              [2023] 4 S.C.R.


A                   UDAY PRATAP THAKUR AND ANR.
                                       v.
                     THE STATE OF BIHAR AND ORS.
                        (Civil Appeal No. 3155 of 2023)
B                               APRIL 28, 2023
               [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
            Service Law : Work Charged Establishment Revised Service
      Conditions (Repealing) Rules, 2013 : r. 5(v) – Pensionary benefits
      – Computation of, of work charged employees, whose services were
C
      subsequently regularized – Counting of the period of work charged
      services – Entire service rendered as work charged under the work
      charged establishment, if to be counted and/or considered for the
      determination of the amount of pension – Held: Work charged
      employees are not appointed on a substantive post – They are not
D     appointed after due process of selection and as per the recruitment
      rules – Thus, the services rendered as work charged cannot be
      counted for the purpose of pension / quantum of pension – However,
      at the same time, after rendering of service as work charged for
      number of years and thereafter when their services have been
      regularized, they cannot be denied the pension on the ground that
E
      they have not completed the qualifying service for pension – Thus,
      the service rendered as work charged after their services have been
      regularized under the regularization scheme, would be counted for
      the purpose of qualifying service for pension only as per r. 5(v) of
      the 2013 Rules.
F
            Dismissing the appeals, the Court
            HELD: 1.1 Rule 5(v) of the Work Charged Establishment
      Revised Service Conditions (Repealing) Rules, 2013 as such can
      be said to be beneficial to such work charged employees, whose
      services have been regularized subsequently. As per Rule 5(v),
G     even if the minimum requirement of 10 years of service (qualifying
      service) for pension is not met, in that case also, the service
      rendered as a work charged to be added for qualifying service
      for pension. Therefore, the efforts have been made by the State
      Government to see that after rendering services for number of
H
                                      530
UDAY PRATAP THAKUR AND ANR. v. THE STATE OF BIHAR                      531


years as work charged, and thereafter, their services have been        A
regularized, they may not be denied the pension on the ground
that they have not completed the qualifying service for pension.
It also further provides that the benefits like pension & gratuity
shall be counted by giving one year advantage against the five
years services as work–charged employee. Therefore, Rule 5(v)
                                                                       B
is beneficial also in favour of such work charged employees, whose
services have been regularized subsequently, and they may not
be deprived of the pension on the ground that they have not
completed the qualifying service for pension. The denying of
pension after rendering service as work charged for number of
years on the ground that they have not completed the qualifying        C
service can be said to be unfair and illegal and can be said to be
exploitation. Therefore, to make such work charged employees
eligible for pension, Rule 5(v) provides that if any work charged
employee, whose services have been regularized under the Rules,
2013, is short of qualifying service, to the extent of such shortage
                                                                       D
of qualifying service, the services rendered as work charged to
be counted for the purpose of qualifying service for pension.
Under the circumstances, the Larger Bench of the High Court
rightly held that for the purpose of pension, only such period
from the work charged tenure would be added for making the
service of an employee, who has been regularized to qualify him        E
for pension. [Para 6.1][537-E-H; 538-A-B]
      1.2. The submission that their entire services rendered as
work charged should be considered and/or counted for the
purpose of pension/quantum of pension is concerned, the same
cannot be accepted. If the same is accepted, in that case, it would    F
tantamount to regularizing their services from the initial
appointment as work charged. There is always a difference and
distinction between a regular employee appointed on a substantive
post and a work charged employee working under work charged
establishment. The work charged employees are not appointed            G
on a substantive post. They are not appointed after due process
of selection and as per the recruitment rules. Therefore, the
services rendered as work charged cannot be counted for the
purpose of pension/quantum of pension. However, at the same
time, after rendering of service as work charged for number of
                                                                       H
532            SUPREME COURT REPORTS                      [2023] 4 S.C.R.


A     years and thereafter when their services have been regularized,
      they cannot be denied the pension on the ground that they have
      not completed the qualifying service for pension. That is why,
      the service rendered as work charged after their services have
      been regularized under the regularization scheme, namely, the
      Rules, 2013 and the Circular shall be counted for the purpose of
B
      qualifying service for pension only as per Rule 5(v) of the Rules,
      2013. [Para 6.2, 7][538-C-F; 539-C]

            Prem Singh v. State of Uttar Pradesh and Ors. (2019)
            10 SCC 516 : [2019] 11 SCR 1075 – held inapplicable.
C
                            Case Law Reference

      [2019] 11 SCR 1075             held inapplicable      Para 6.3

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3155
D     of 2023.

            From the Judgment and Order dated 04.01.2018 of the High Court
      of Judicature at Patna in CWJC No. 8283 of 2016.

            With
E
            Civil Appeal Nos. 3156, 3155, 3157 and 3158-3159 of 2023.

            J.M. Sharma, Sr. Adv., Amit Pawan, Anand Nandan, Abhishek
      Amritanshu, Hassan Zubair Waris, Suchit Singh Rawat, Ms. Shivangi,
      Aakarsh, Amit Kumar, Kushagra Raj, Bankey Bihari Sharma, Atul
F     Bandhu, Ajit Sharma, Akshat Sharma, Amrit Pradhan, Advs. for the
      Appellants.

            Mrs. Madhvi Divan, A.S.G., Ranjit Kumar, Sr. Adv., Abhinav
      Mukerji, Akshay Shrivastava, Mrs. Bihu Sharma, Ms. Pratishtha Vij,
G     Azmat Hayat Amanullah, Tirupati Gaurav Shahi, Mrs. Nachiketa Joshi,
      Amit Verma, Shiv Mangal Sharma, Mrs. Vaishali Verma, Raj Bahadur
      Yadav, Advs. for the Respondents.



H
UDAY PRATAP THAKUR AND ANR. v. THE STATE OF BIHAR                                533


       The Judgment of the Court was delivered by                                A
       M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned
judgment(s) and order(s)passed by the High Court of judicature at Patna
in respective letters patent appeals, the respective original writ petitioners
– work charged employees, whose services were subsequently                       B
regularized as per the Work Charged Establishment Revised Service
Conditions (Repealing) Rules, 2013 (hereinafter referred to as “Rules,
2013”), have preferred the present appeals.
       2. For the sake of convenience, Civil Appeal Nos. 3158-3159 of
2023 (Maheshwar Pandey Vs. State of Bihar and Ors.) is being treated             C
as the lead matter.
      2.1 The issue involved in the present appeals is with respect to
the counting of the period of work charged services for the purpose of
computing pensionary benefits and the length of pensionable service.
                                                                                 D
       2.2 A Larger Bench of the High Court by the impugned judgment
and order while upholding Rule 5(v) of the Rules, 2013 has held that the
period spent in the work charged establishment would be counted only
to the extent of the shortfall in the qualifying period of service for grant
of pension, which shall be made up by adding that period spent under the
work charged establishment and that the entire period spent under the            E
work charged establishment would not be taken into account.
      2.3 The respective original writ petitioners were initially appointed
and working under the work charged establishment as work charged.
The State Government came out with the Rules from time to time to
regularize the services of the work charged employees and also how the           F
work charged services to be counted/considered. Lastly, the State
Government framed the Rules, 2013, under which the services of the
original writ petitioners came to be regularized.
       2.4 One of the clauses, namely, Clause 5(v) provided that old
pension scheme will be applicable on these personnel. It further provided        G
that granting the pension and gratuity benefits will be calculated with the
recognition of regular service of one year for the work charged service
of every five years and in spite of this, if the minimum pension paid
service is not completed for pension acceptance under the old pension,
the benefit of the pension will be given by adding minimum service to
that extent.                                                                     H
534            SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A            2.5 Though the original writ petitioners were held to be entitled to
      the pension by taking into account the services rendered as work charged
      for the purpose of qualifying period of service for grant of pension, they
      challenged Rule 5(v) of the Rules, 2013 to the extent it provided that for
      the purpose of counting of pension, regular service of one year for the
      work charged service of every five years shall be taken into consideration.
B
      According to the original writ petitioners, the entire service rendered as
      work charged in the work charged establishment is required to be counted
      and/or considered for the purpose of pension.
            2.6 There were differences of opinion in the two Division Bench
      judgments with respect to the counting of the period of work charged
C     services for the purpose of computing pensionary benefits and the length
      of pensionable service, therefore, the matter was referred to the Larger
      Bench. The Larger Bench by the impugned judgment and order has
      answered the reference in following terms:-
            “(a) With respect to addition of the number of years of service
D           rendered in a work charged tenure to the service under regular
            establishment, for the purposes of making the service of such
            regular employees pensionable, there is practically no substantial
            difference in the pronouncements of the two Division Benches in
            the case of Sheela Devi (supra) and Binod Kumar (supra). (b)
E           For the purposes of pension, only such period from the work-
            charged tenure would be added for making the service of an
            employee which has been regularized to qualify him for pension.
            (c) While adding such period of work-charged tenure, the modus
            would be of granting/counting one year for every five years of
            service rendered under work-charged establishment. If that also
F           leaves some shortfall, then further number of years of work-
            charged tenure can be taken/added for making the service of the
            employee pensionable. (d) For the purposes of giving benefit to
            an employee for promotion on the selection grade and timebound
            promotion, the entire period of service rendered as work-charged
G           employee can be counted. (e) The Rules and Circular of 2013 are
            valid as has been held in Binod Kumar (supra). (f) The Rules and
            Circular of 2013 are applicable to such work-charged employees
            who have been appointed after 22.10.1984 and prior to 11.12.1990.”
           3. The learned counsel appearing on behalf of the appellants has
H     vehemently submitted that in fact the respective appellants rendered
UDAY PRATAP THAKUR AND ANR. v. THE STATE OF BIHAR                            535
                 [M. R. SHAH, J.]

services as work charged for approximately more than 30 to 35 years. It      A
is submitted that they were also granted other benefits like MACP etc.
while working as work charged under the work charged establishment.
It is submitted that therefore, their earlier services rendered as work
charged employees shall not be wiped out and/or at-least cannot be
ignored for the purpose of pension.
                                                                             B
      3.1 It is submitted that the respective appellants were as such
appointed not on a particular project but the appointment was for a work,
which was regular and periodical in nature for a monthly salary and they
were working in the Government department. It is submitted that
therefore, their services were not qualitatively different from regular
employees.                                                                   C

       3.2 It is submitted that it was unfair on the part of the State
Government to take work from them for periods depriving them of their
due emoluments. It is submitted that all the appellants were appointed
after their names were called from the Employment Exchange.
                                                                             D
       3.3 It is submitted that as observed and held by this Court in the
case of Prem Singh Vs. State of Uttar Pradesh and Ors., (2019) 10
SCC 516, the services rendered as work charged is to be counted for
pensionary benefits. Learned counsel appearing on behalf of the appellants
has heavily relied upon the paragraphs 29, 30, 31, 32 and 36 of the said
decision.                                                                    E

       4. Learned counsel appearing on behalf of the State while opposing
the present appeals has vehemently submitted that in fact taking into
consideration the fact that despite having worked for a longer period as
work charged, thereafter when they were regularized and they were
found short of qualifying service for pension and on that ground, they       F
may not be denied the pension solely on the ground that they have not
completed the qualifying service for pension, a conscious decision has
been taken by the State in favour of such employees providing that for
the purpose of qualifying service, the services rendered as work charged
is to be counted to make them eligible for pension.                          G
       4.1 It is submitted that their services rendered as work charged
cannot be counted for the purpose of actual pension, otherwise, there
shall not be any difference between a regular employee and a work
charged employee. It is submitted that till the work charged employee is
regularized, he continues to be work charged employee. It is submitted
                                                                             H
536             SUPREME COURT REPORTS                            [2023] 4 S.C.R.


A     that therefore, the Larger Bench of the High Court has rightly observed
      and held that for the purpose of pension, only such period from the work
      charged tenure would be added for making the service of an employee
      to qualify him for pension and while adding such period of work charged
      tenure, the modus operandi for counting would be one year for every
      five years of service rendered under work charged establishment and if
B
      that also leaves some shortfall, then further number of years of work
      charged tenure can be taken / added for making the service of the
      employee pensionable. It is submitted that therefore, the High Court has
      rightly upheld the vires of Rules, 2013.
             4.2 It is submitted that insofar as the reliance placed upon the
C     decision of this Court in the case of Prem Singh (supra) relied upon on
      behalf of the appellants is concerned, it is submitted that the said decision
      shall not be applicable at all as the reliance placed upon the said decision
      is absolutely misplaced.
             4.3 It is submitted that in the said decision, this Hon’ble Court
D     was considering Rule 3(8) of the U.P. Retirement Benefit Rules, 1961,
      which specifically provided that the period of servicein a work charged
      establishment shall not be counted for qualifying service for pension. It
      is submitted that to that this Hon’ble Court read down the said provision
      and has observed and held that service rendered as a work charged
E     shall have to be counted as qualifying service for pension.
             4.4 It is submitted that while considering the validity of Rule 3(8)
      of the said Rules, this Hon’ble Court observed that after rendering the
      service for number of years, they cannot be denied the pension on the
      ground that they have not rendered the qualifying service for pension
F     and that the work charged service can be counted as qualifying service
      for pension. It is submitted that while considering the validity of Rule
      3(8) of the aforesaid Rules, and denying total work charged service to
      be counted as qualifying service for pension, this Hon’ble Court has
      observed and held that it will be unfair, unjust and impermissible to deny
      them the pension and to that it is observed and held that the work charged
G     service can be counted as qualifying service for pension.
             4.5 It is submitted that in the said decision, this Hon’ble Court has
      not observed and held that their entire service rendered as a work charged
      shall be considered for the purpose of counting of the pension. It is
      submitted that the said decision shall be restricted to the period of service
H     rendered as work charged to be counted as qualifying service for pension.
UDAY PRATAP THAKUR AND ANR. v. THE STATE OF BIHAR                                537
                 [M. R. SHAH, J.]

       5. The short question, which is posed for consideration of this           A
Court is:
       “Whether the entire service rendered as work charged under the
       work charged establishment shall have to be counted and/or
       considered for the determination of the amount of pension after
       the work charged employees are regularized under the Rules,               B
       2013?
       6. It is required to be noted that the respective appellants were
working as work charged under the work charged establishment in the
State. Their services have been regularized under the Rules, 2013 and
the follow up notification of the Finance Department vide Circular No.           C
10710 dated 17.10.2013. Rule 5(v) of the Circular reads as under:-
       “5(v} Old pension rules shall be applied on these employees. The
       benefit pension & gratuity shall be counted by giving one year
       advantage against the five years services as work-charged
       employee. Even then if the minimum requirement of 10 years of             D
       service for pension is not met under the old rules, then minimum
       service shall be added to give advantage thereof.”
       6.1 Rule 5(v) of the Rules, 2013 as such can be said to be beneficial
to such work charged employees, whose services have been regularized
subsequently. As per Rule 5(v), even if the minimum requirement of 10            E
years of service (qualifying service) for pension is not met, in that case
also, the service rendered as a work charged to be added for qualifying
service for pension. Therefore, the efforts have been made by the State
Government to see that after rendering services for number of years as
work charged, and thereafter, their services have been regularized, they
may not be denied the pension on the ground that they have not completed         F
the qualifying service for pension. It also further provides that the benefits
like pension & gratuity shall be counted by giving one year advantage
against the five years services as work-charged employee. Therefore,
Rule 5(v) as observed hereinabove, is beneficial also in favour of such
work charged employees, whose services have been regularized                     G
subsequently, and they may not be deprived of the pension on the ground
that they have not completed the qualifying service for pension. The
denying of pension after rendering service as work charged for number
of years on the ground that they have not completed the qualifying service
can be said to be unfair and illegal and can be said to be exploitation.
                                                                                 H
538             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A     Therefore, to make such work charged employees eligible for pension,
      Rule 5(v) provides that if any work charged employee, whose services
      have been regularized under the Rules, 2013, is short of qualifying service,
      to the extent of such shortage of qualifying service, the services rendered
      as work charged to be counted for the purpose of qualifying service for
      pension. Under the circumstances, the Larger Bench of the High Court
B
      has rightly observed and held that for the purpose of pension, only such
      period from the work charged tenure would be added for making the
      service of an employee, who has been regularized to qualify him for
      pension.
             6.2 Insofar as the submission on behalf of the appellants that their
C     entire services rendered as work charged should be considered and/or
      counted for the purpose of pension/quantum of pension is concerned,
      the same cannot be accepted. If the same is accepted, in that case, it
      would tantamount to regularizing their services from the initial
      appointment as work charged. As per the catena of decisionsof this
D     Court, there is always adifference and distinction between a regular
      employee appointed on a substantive post and a work charged employee
      working under work charged establishment. The work charged employees
      are not appointed on a substantive post. They are not appointed after
      due process of selection and as per the recruitment rules. Therefore, the
      services rendered as work charged cannot be counted for the purpose
E     of pension / quantum of pension. However, at the same time, after
      rendering of service as work charged for number of years and thereafter
      when their services have been regularized, they cannot be denied the
      pension on the ground that they have not completed the qualifying service
      for pension. That is why, the service rendered as work charged is to be
F     counted and/or considered for the purpose of qualifying service for
      pension, which is provided under Rule 5(v) of the Rules, 2013.
             6.3 Now, insofar as the reliance placed upon the decision of this
      Courtin the case of Prem Singh (supra) by the learned counsel appearing
      on behalf of the appellants is concerned, the reliance placed upon the
G     said decision is absolutely misplaced. In the said case, this Court was
      considering the validity of Rule 3(8) of the U.P. Retirement Benefit Rules,
      1961, under which the entire service rendered as work charged was not
      to be counted for qualifying service for pension. To that, this Court has
      observed and held that after rendering service as work charged for
      number of years in the Government establishment / department, denying
H
UDAY PRATAP THAKUR AND ANR. v. THE STATE OF BIHAR                               539
                 [M. R. SHAH, J.]

them the pension on the ground that they have not completed the qualifying      A
service for pension would be unjust, arbitrary and illegal. Therefore, this
Court has observed and held that their services rendered as work charged
shall be considered/counted for qualifying service. This Court has not
observed and held that the entire service rendered as work charged
shall be considered/counted for the quantum of pension/pension. The
                                                                                B
decision of this Court in the case of Prem Singh (supra), therefore,
would be restricted to the counting of service rendered as work charged
for qualifying service for pension.
      7. In view of the above and for the reasons stated above, present
appeals lack merits and the same deserve to be dismissed and are
accordingly dismissed. It is observed and held that the service rendered        C
as work charged after their services have been regularized under the
regularization scheme, namely, the Rules, 2013 and the Circular shall be
counted for the purpose of qualifying service for pension only as per
Rule 5(v) of the Rules, 2013.
      Present appeals, thus, deserve to be dismissed and are accordingly        D
dismissed. No costs.
       Pending applications, if any, also stand disposed of.

Nidhi Jain                                                 Appeals dismissed.   E
(Assisted by : Abhishek Agnihotri and Tamana, LCRAs)




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